JAIPUR NATIONAL UNIVERSITYSeedling School of Law and Governance
Jagatpura, Jaipur-302 017, India
E-Mail: mootcourt@jnujaipur.ac.in

5th, 6th & 7th October

Media Partner

Knowledge Partner

Moot Problem

Case Concerning
The Border Skirmish Between Marshal And Aryan

Marshal is a landlocked country located in the African continent ruled by a dictator, General Vadim. Assura is the capital of Marshal.

As a country, Marshal has been perceived as a despotic state by its neighbouring states. However, internationally it is well received as a country with a high level of growth, development, prosperity and a high standard of living.

General Vadim assumed power in 1975, after Marshal became independent from British rule in 1972. General Vadim who formed part of British army had succeeded to become the dictator of Marshal after suspending the newly formulated constitution of independent Marshal.

Marshal is bordered by Aryan, Castle and Lager, and all these three neighbouring countries have democratically elected governments, and have never seen or witnessed a military coup.

Since independence, Marshal has fought four wars with its neighboring countries, primarily on the basis of religion as Marshal is a Christian dominated country whereas its three neighbours are all Islamic countries. Despite sustained efforts of its neighbours to establish supremacy over Marshal, Marshal has always fended off attacks on its territory through military tactics and expertise, and with support from the Republic of Dominia, which happens to be another Christian majority superpower located in the African continent.

Marshal has even gone ahead to annex certain territories of Aryan, which culminated in the Bortex Agreement of 1998 demarcating a new border line between Aryan and Marshal known as the Line of Control (LOC). Additionally, this Agreement also made it mandatory to make the LOC a demilitarized zone.

Recently, on the 15th of October 2017, the Aryan army started conducting patrolling operations in the LOC. These operations were not sanctioned and largely condemned by the International community.

The operations were discovered by Major Dmitri Godman who was in charge of the Alpha unit manning one of the Marshal Border outposts. Major Godman went on to ward off the infiltration attempt by the Aryan army along with five other soldiers, and all of them were eventually caught as a result of being overpowered by the Aryan army after they ran out of ammunition.

The activities of the Aryan army led the Marshal army to conduct large scale military operations in the LOC resulting in a full-fledged war within the territory known as the Marshal- Aryan border skirmish which lasted from 20th October 2017 to 25th December 2017. Marshal emerged victorious in this war by brutally crushing the Aryan aggression.

The result of the war was that first, Marshal annexed the LOC as part of its territory; second, Marshal captured close to 47000 Prisoners of War (POW) as well close to 100 civilians and lastly, as a result of the humiliating defeat in the war, the Aryan government was sacked along with an imposition of martial law with the army taking over the reins of the government.

The Aryan government requested Marshal to hand over the Prisoners of War (POW) as well as the civilians captured by them, in exchange for Major Godman, along with his five soldiers, who happened to be the only POWs captured by Aryan.

The offer was refused by Marshal by stating that these soldiers would be kept in permanent captivity as a punishment for Aryan’s constant indulgence in unnecessary war and aggression, and also since the recent unprovoked war on the LOC meant that Aryan needs to be given a constant reminder for its wrongdoings. However, Marshal agreed to release the civilians except one namely Mr. Alex, whom they claimed was being detained on charges of espionage as he belonged to the Aryan Secret Service. In the words of General Vadim at the United Nations General Assembly.

Every time, we have to tolerate their rubbish. This time, we will make them pay for their sins...

Even the repeated requests from Aryan to Marshal to have consular access to Mr. Alex were denied stating that Mr. Alex was a threat to the country of Marshal and permitting consular access would only further endanger their nation.

On the 02nd of February 2018, the Marshal Border outpost received a sealed parcel from the Aryan army with an enclosed letter. The parcel contained mutilated body parts of all the soldiers captured by Aryan, with Major Godman’s name tag appearing on top of all the chopped up body pieces. The letter contained two lines as follows, ‘Be prepared, we are going to hit you soon.’

There was a huge uproar within Marshal, and a detailed account of the brutalities committed by Aryan was publicized. There was evidence of gruesome torture on the soldiers including mutilation, permanently disabling or removing an organ and endangering mental and physical health. The soldiers were firstly shot dead, and then these acts were committed.

Within Aryan, largely, fingers were being pointed towards General Vadim and the insensitive remarks that he had made at the General Assembly session.

In a speech to justify his actions, General Vadim tried to salvage the situation by stating that he was right in doing what he did. He committed to bringing Aryan to book, and consequently made a declaration to invoke Article 4 of the Bortex Agreement which gives rise to jurisdiction of the ICJ (International Court of Justice) for acts committed during war time. A notice was accordingly sent to Aryan for the brutalities committed on Major Dmitri Godman, for bringing ICJ jurisdiction into the fray.

Aryan firmly opposed ICJ jurisdiction to the matter at hand, and stated that it does not accept the ICJ’s jurisdiction in a matter which can be resolved through diplomatic means, or through negotiations, or through an aggressive act which could finally settle the dispute between the two countries. Furthermore, it maintains that Article 4 of the Bortex Agreement is not applicable to the present matter since the LOC as envisaged in the Bortex Agreement does not currently exist.

The ICJ registry has admitted Marshal’s applications to institute written proceedings under Article 36(1) of the ICJ statute based on Article 4 of the Bortex Agreement based on which both countries are bound to approach the ICJ for settlement of their dispute. Aryan has filed its objection to the application with a singular ground that it does not consent to the ICJ’s jurisdiction, and has stated that it would appear in court to reiterate the same.

Both states are parties to the following conventions, namely; UDHR, ICCPR, ICESR, all the Geneva Conventions, the UN Charter, Vienna Convention on the Law of Treaties and the ICJ statute.

Briefly, the broad heads of issues presented before the ICJ are as follows:

Marshal

The question of not agreeing to ICJ’s jurisdiction cannot arise, since Article 4 of the Bortex Agreement confers jurisdiction upon it. Consent to an Agreement conferring jurisdiction upon the ICJ mandates a party to accept ICJ jurisdiction.

The treatment meted out to Major Dmitri Godman is contrary to the principles of International law, especially international humanitarian law, and the treaties and conventions that both states are party to.

The unprovoked attack on the LOC demanded a strict action to be taken from Marshal's end; Marshal is not bound to return the POWs

Marshal is entitled to appropriate damages which are to be calculated based on settled conventions under International law.

Marshal was absolutely right in its place as per international law to deny Aryan consular access to Mr. Alex.

Aryan

Consent forms the primary basis of ICJ jurisdiction. Without consent, no party can be coerced into accepting ICJ jurisdiction. The Bortex Agreement is no longer valid since the LOD does not exist, and hence, ICJ jurisdiction cannot arise.

The treatment meted out to Major Dmitri Godman is beyond the scope of this court’s jurisdiction. Aryan is not obligated to answer questions related to a bilateral issue which can be solved at the bilateral level.

The Infiltration war has resulted in a sizable number of POWs being captured. They need to be suitably returned back to Aryan since their capture and consequential inhuman treatment is contrary to the principles of International law and the treaties and conventions that both states are party to.

Aryan is entitled to appropriate damages which are to be calculated based on settled conventions under International law.

Aryan was entitled as per principles of international law to have consular access to Mr. Alex.

Annexure-1 - The Bortex Agreement of 1998

The Bortex Agreement of 1998

This Agreement executed on this the 10th day of April 1998 shall be known as the Bortex Agreement and shall govern all actions, activities and disputes which arise between Marshal and Aryan in relation to the LOC. Now, the Articles forming the substance of this Agreement are as follows:

Article 1-

The scope of this Article is with respect to the territory constituting the LOC, and all activities which are undertaken within it. Any dispute arising from any action, aggressive or non-aggressive shall be governed by this Agreement.

Article 2-

The parties to this Agreement shall try their best to resolve all issues arising between them amicably and through bilateral talks or negotiations only.

Article 3-

The parties to this Agreement shall ensure peace in the demilitarized LOC, and shall not indulge in any act of aggression without a fair warning to each other.

Article 4-

In the event of irreconcilable differences, or disputes which are of a grave nature, either party may approach the ICJ. The ICJ shall have sole jurisdiction over matters described in the scope of this agreement.

Article5-

This Agreement bears International sanction, and is a recognized agreement for the purposes of International law.